A blog about criminal law and indigent defense.

Underwear Searches Violate the Fourth Amendment

Stories of having pants undone and lowered and underwear being rifled through come from black men from various parts of the city. Their stories are strikingly similar. Sometimes drugs are found; sometimes, not.

Such searches, conducted in public places, are strictly prohibited by police department policy and state law. The department keeps no statistics on how often these searches occur, a department spokesman said. Commissioner Richard Ross says he has no knowledge of the practice.

But five men who have had their underwear searched on public streets say the experiences left them scarred.

Call it Stop-and-Fondle.

The article goes on to describe the racist and humiliating nature of these searches, but does not dig into their legality. Underwear searches should be prohibited by the Fourth Amendment, particularly because they are so personal.

The Fourth Amendment protects a person’s bodily integrity and privacy against unreasonable government intrusion. A police officer may “stop and frisk” someone on the street (pat him down over the clothing) only if the officer has reason to believe that the person is involved in criminal activity and may be hiding a weapon. Under the “plain feel” doctrine, the officer may reach into the person’s clothing only if the officer feels something during the frisk that is obviously contraband.

Yet according to Philly.com, police have been stopping and frisking men for minor infractions – biking through a red light, driving a car with tinted windows, or even just watching a pick-up basketball game. This harmless behavior poses no public safety threat and the searches were therefore unjustified.

The article also reports that even after searching the men’s underwear, the police discovered only small packets of drugs, or sometimes nothing at all. Since an officer may only reach into a suspect’s clothing if he feels contraband, it is doubtful whether these underwear searches were permissible under the “plain feel” doctrine.

The private nature of the genital region, moreover, deserves special consideration. The Supreme Court has suggested that the more physically invasive the search, the greater the Fourth Amendment protection. Touching around a person’s naked thighs is more physically invasive than just about anything short of a cavity search. It thus merits extra scrutiny.

For a police officer to conduct an underwear search following a frisk, the courts should require him to feel dangerous contraband. It is unreasonable for an officer to frisk a person’s crotch or buttocks, touch a small soft lump that he believes to be drugs, and then use that suspicion to justify the most personal of intrusions. Only if the officer detects a weapon during a frisk – an impression that would be obvious and would pose a threat to public safety – should he be allowed to reach into a person’s underwear.